Activism vs. The Rule of Law

In May of last year, the New York Times did something extraordinary: On the front page, the paper not only ran a photo of a Massachusetts woman in flagrante delicto committing multiple federal and state felonies and civil torts, but also identified her and the scene of the crime. You would think an ensuing investigation and prosecution would be a slam-dunk, but federal regulators and law enforcement officials have been nowhere to be found.

The crimes? This woman and other activists were defacing food labels to "warn" consumers about alleged dangers of genetically modified foods.

This is far from a harmless prank. Federal law prohibits "The alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food, drug, device, or cosmetic, if such act is done while such article is held for sale (whether or not the first sale) after shipment in interstate commerce and results in such article being adulterated or misbranded."

In plain English, homemade, ad hoc warning labels like those described in the Times' expose make the products "misbranded," and they can no longer be sold legally.

Placing your own "warning" label on a food product for sale constitutes several serious crimes in addition to the violation of the Federal Food, Drug and Cosmetic Act. Vigilante labeling also violates state laws, including "criminal trespass"—an unlawful act causing injury to the person, property, or rights of another—as well as vandalism and criminal defacement. And because these actions are being promoted and perpetrated by a group (www.labelityourself.org), we can throw in criminal conspiracy charges as well.

Photo credit: Rainforest Action Network

There's still more—there are, for instance, the violations of civil law, such as "trespass to chattels," which is interference with another person's lawful possession of personal property that has a prospective economic value. Finally, the manufacturer of the food could bring an action for "dilution" —weakening of its brand or trademark.

In case the Obama administration's law enforcement officials didn't read their New York Times the day the crimes were reported, we personally reported the criminal acts to the FBI's Boston office (in the region where the transgressions took place), as well as to the FDA Commissioner and the head of the agency's Center for Food Safety and Nutrition, who have jurisdiction over the federal violations.

We have not received even an acknowledgement, let alone substantive follow-up. We cannot help wondering whether the inaction reflects the Obama administration's demonstrated anti-genetic engineering bias, its sympathy with food activists, or both. (The incident happened too long ago to blame the sequester.)

Why ignore prima facie evidence of federal crimes? There is reason to believe that politics is involved in this selective (non-)enforcement. Food activism is especially concentrated in blue states such as Massachusetts, New York, Oregon, and California. (The New York Times' front-page story showed Cynthia LaPier of Great Barrington, Mass., slapping "Warning, May Contain GMO's" labels on food products in a local market.)

The administration's failure to enforce laws on the books is especially troublesome given that the issue of labeling genetically engineered foods is being deliberated by legislators and voters around the country. Just last year, California's voters, who are hardly known for being conservative, rejected Proposition 37, the green movement's model for mandatory labeling of genetically engineered foods. The administration's inaction sends a message that if you can't win at the ballot box, it is okay to take matters into your own hands. It's no surprise, then, that activists have been threatening to escalate their "guerilla-labeling" efforts.

Partisan political motives behind the failure of regulators and the Department of Justice to investigate and prosecute the labeling vigilantes would not be an isolated example. Americans learned recently that the IRS discriminated against conservative groups while determining whether they were entitled to tax-exempt status; there is also the case of the EPA, which waived Freedom of Information request fees for "green" organizations, but not for conservative groups; and the Department of Justice overlooked flagrant intimidation of white voters by Black Panthers at the polls during the 2008 election.

What Are Genetically Modified Foods?

Some background is necessary to understand the motivation for the vigilante labeling. There are widespread misapprehensions about the modern techniques of genetic engineering—also known as biotechnology, recombinant DNA technology, or genetic modification (GM)—which offer plant breeders the tools to make old crop plants do spectacular new things. These technologies increase crop yields and offer a variety of crop-specific benefits, including better nutrients, improved resistance to pests, drought-tolerance, and other characteristics that allow farmers to grow more with fewer inputs and less environmental impact. The practice is opposed mostly by progressives who embrace an idyllic view of a nature unspoiled by technology and tend to dislike corporate-driven innovation.

The scientific community has long recognized that the "new" techniques—now four decades old—are essentially an extension, or refinement, of earlier methods for genetic modification, and that gene transfer or modification by molecular techniques does not, per se, confer risk. In fact, because of the greater precision, agricultural scientists have more confidence about safety. After the cultivation of more than 3 billion acres of genetically engineered crops worldwide in some three dozen countries and the consumption in North America alone of more than three trillion servings of foods that contain ingredients from them, there has not been a single documented case of injury to a person or disruption of an ecosystem.

On the basis of both the scientific and regulatory precedents, the FDA decided in 1992 that food labels do not need to include information about the use of the newer genetic engineering techniques. Federal regulation requires that food labels be truthful and not misleading and prohibits label statements that are likely to be misunderstood by consumers even if they are strictly accurate. Following long-standing precedents in food regulation, the FDA requires special labeling only when a new food raises questions of safety, nutrition, or proper usage.

Instead of educating or serving a legitimate consumers' "need to know" certain information, regulators believe that mandatory labels on genetically engineered food would imply a warning, or at least would likely be misconstrued by consumers as a suggestion that the product differs in some material way (such as safety or nutrition) even if it does not.

In the 1992 policy announcement, the FDA said that it would require foods—whatever technology was used to make them—to be reviewed by regulators and possibly labeled if they raise questions related to nutrition or safe use. Examples cited in the announcement include the presence of substances new to the food supply, allergens presented in an unusual or unexpected way (such as a peanut protein in wheat), or increased levels of toxins found normally in foods.

FDA does not require labeling to indicate whether or not a food or food ingredient is a [genetically engineered] product, just as it does not require labeling to indicate which conventional breeding technique was used in developing a food plant. Rather, any significant differences in the food itself have to be disclosed in labeling. If genetic modifications materially change the composition of a food product, these changes must be reflected in the food's labeling. This would include its nutritional content (for example, more oleic acid, or greater amino acid or lysine content) or requirements for storage, preparation, or cooking, which might impact the food's safety characteristics or nutritional qualities. For example, one soybean variety was modified to alter the levels of oleic acid in the beans. Because the oil from this soybean is significantly different when compared to conventional soybean oil, we advised the company to adopt a new name for that oil, a name that reflects the intended change.

He went on to say that the FDA still did "not have data or other information to form a basis for concluding that the fact that a food (or its ingredients) was produced using [genetic engineering] is material within the meaning of 201(n) [of the Food, Drug and Cosmetic Act] and therefore, constitutes information that must be disclosed as part of a [genetically engineered] product's labeling. Hence, we believe that we have neither a scientific nor a legal basis to require such labeling" (emphasis added).

Moreover, the federal courts have found that mandatory labeling to identify "genetically engineered" products, whether imposed at the state or federal level, would violate the constitutional guarantee of commercial free speech. They specifically rejected the notion that that consumers have a "right to know" non-material information.

Undaunted by the science or the law, pro-labeling activists continue to argue that consumers have a "right to know" the "genetic status" of their food; just tell people if their corn flakes have been genetically engineered and let them decide what to buy, they say. Their protestations notwithstanding, it is clear that the activists are not really in favor of consumers having choices. During the campaigning in California on Proposition 37, they made no bones about mandatory labeling being merely the first step toward the complete elimination of such foods—and their benefits—from the marketplace.

Besides, consumers already have plenty of information about the "genetic status" of the foods they buy. From 2000-09 alone, roughly 7,000 new foods and beverages with voluntary "GE-free" labeling debuted in U.S. supermarkets. Among these are countless dairy products that proudly tout their non-GE pedigrees. In addition, the organic industry boasts that certified foods cannot contain GE ingredients, and various food companies and activist groups have created websites, pocket guides, and even smart phone apps that direct purchasers to GE-free products. With all this information freely available, consumers already have what they need to choose, proving once again that market forces often are better than government fiat at sorting out these sorts of issues.

The Case of the FDA

Electing to ignore the crimes of the labeling vigilantes wouldn't be the first time the administration has used its powers to aid and abet European-style anti-genetic engineering activism. By mid-April 2012, after an excruciating (and excessive) eight-year review, the FDA was ready to take the final step to approve a genetically engineered, farmed salmon that reaches mature size faster than its unmodified cohorts but is otherwise indistinguishable from them.

The release of the needed Environmental Assessment was, however, blocked by the White House for eight months (and as this article went to press, the salmon still had not been approved). As American Enterprise Institute fellow and science writer Jon Entine chronicled in December 2012 following an exhaustive investigation, according to sources within the government, the delay "came after discussions late last spring between Health and Human Services Secretary Kathleen Sibelius' [sic] office and officials linked to Valerie Jarrett at the Executive Office [of the President], who were debating the political implications of approving the [genetically engineered] salmon. Genetically modified plants and animals are controversial among the president's political base, which was thought critical to his reelection efforts during a low point in the president's popularity." That says it all.

Entine concluded: "The White House blocked it for brazenly political reasons. That's a subversion of the scientific process and of the government's supposedly independent approval process, which does no one any good." A similar sort of politically motivated subversion may be responsible for the feds' decision to give the high-profile labeling vigilantes a free pass.

The government's failure to enforce the law undermines the provisions of the Food, Drug and Cosmetic Act; allows activists' illegal activities to misinform consumers; makes safe and wholesome foods unsellable; and sends the message that if you cannot persuade policymakers through the democratic process, the government will look the other way as you commit crimes to achieve your political agenda.

What ever happened to the rule of law?

Henry I. Miller, MS, MD, is the Robert Wesson Fellow in Scientific Philosophy and Public Policy at the Hoover Institution. His research focuses on public policy toward science and technology encompassing a number of areas, including pharmaceutical development, genetic engineering in agriculture, models for regulatory reform, and the emergence of new viral diseases.

Jeff Stier is a Senior Fellow at the National Center for Public Policy Research and directs its Risk Analysis Division.

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